Citation Nr: 9921553
Decision Date: 07/30/99 Archive Date: 08/03/99
DOCKET NO. 97-12 247 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to special monthly compensation based on the need for
the regular aid and attendance of another person or by reason of
being housebound.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
INTRODUCTION
The veteran served on active duty from July 1968 to July 1970.
This matter comes to the Board of Veterans Appeals (Board) from a
February 1997 rating decision of the Regional Office (RO) which
denied the veteran's claim for special monthly compensation based
on the need for the regular aid and attendance of another person
or by reason of being housebound.
Effective March 1, 1999, the name of the United States Court of
Veterans Appeals was changed to the United States Court of
Appeals for Veterans Claims ("the Court").
REMAND
The veteran has been granted service connection for post-
traumatic stress disorder, major depression, for which a 100
percent evaluation is in effect.
A review of the record shows that the veteran has been treated by
H. Biala, M.D. for a number of years. Although he has submitted
several statements on the veteran's behalf, no records of any
recent treatment have been associated with the claims folder.
In addition, the Board notes that the veteran was afforded an
examination by the Department of Veterans Affairs (VA) to
determine his need for the aid and attendance or housebound status
in August 1997. It is significant to point out, however, that the
report failed to indicate whether the veteran is able to perform
the activities of daily living.
The VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991).
The Court has held that the duty to assist the veteran in
obtaining and developing available facts and evidence to support
his claim includes obtaining adequate VA examination. This duty
is neither optional nor discretionary. Littke v. Derwinski, 1
Vet. App. 90 (1990). This duty also includes providing additional
VA examinations by a specialist when recommended. Hyder v.
Derwinski, 1 Vet. App. 221 (1991). The fulfillment of the
statutory duty to assist includes conducting a thorough and
contemporaneous medical examination, one which takes into account
the records of prior medical treatment, so that the evaluation of
the claimed disability will be a fully informed one. Green v.
Derwinski, 1 Vet. App. 121, 124 (1991).
Under the circumstances of this case, the Board finds that
additional development of the record is required. Accordingly,
the case is REMANDED to the RO for action as follows:
1. The RO should contact the veteran and
request that he furnish the names,
addresses, and dates of treatment of all
medical providers from whom he has received
treatment for his psychiatric disorder since
1997. After securing the necessary
authorizations for release of this
information, the RO should seek to obtain
copies of all treatment records referred to
by the veteran, including those from Dr.
Biala, and which have not already been
associated with the claims folder.
2. The veteran should then be afforded a
VA examination for housebound status or
permanent need for aid and attendance. It
is suggested that the examiner complete VA
Form 21-2680, responding to all questions
therein, including whether the veteran is
able to feed or dress himself, attend to
the wants of nature, ambulate outside the
home without assistance, etc., and if not,
what specific disabilities are implicated
in his inability to perform such self-care
tasks. The examiner should specifically
indicated what impact the veteran's
service-connected psychiatric disability
may have on the veteran's ability to
perform any of these tasks. The claims
folder should be made available to the
examiner in conjunction with the
examination.
Following completion of the above, the RO should review the
evidence and determine whether the veteran's claim may be
granted. If not, he and his representative should be furnished
an appropriate supplemental statement of the case and be provided
an opportunity to respond. The case should then be returned to
the Board for further appellate consideration.
This claim must be afforded expeditious treatment by the RO. The
law requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
Supp. 1999) (Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to
provide expeditious handling of all cases that have been remanded
by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45
and 38.02-38.03.
James R. Siegel
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a decision
of the Board of Veterans' Appeals is appealable to the United
States Court of Appeals for Veterans Claims. This remand is in
the nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (1998).